Harper: Training for judges should include Indigenous perspectives

In Canada, all judges and those applying to be judges must soon take additional training to address sexual assault cases.

The Judicial Accountability through Sexual Assault Law Training Bill is intended to correct the overt deficiencies within the criminal justice system regarding sexual violence against women and girls. However, one conspicuous area not being addressed by Bill C-337, which the Senate will be discussing in a second reading this fall, is the fact that Indigenous women are often targets of judicial bias in sexual assault cases.

More and more Indigenous women will become entangled in the criminal justice system, according to demographics projections; at 36 per cent of the federal prison population, they are highly over-represented. All attempts at adjusting the judicial system must therefore take into account the blatantly tragic status quo regarding Indigenous women.

Several cases across the country have brought the extent of the issue to the forefront, most notably Alberta’s then-judge Robin Camp, who asked a sexual assault complainant why she could not just keep her “knees together” to ward off the assault, and advised her that “sex and pain sometimes go together.”

Another case is that of a woman, also the victim of a sexual assault, who was jailed by order of a judge. She appeared at the preliminary hearing in shackles. There were other cases very similar to hers wherein young women, testifying at hearings after they were brutally attacked and assaulted by sexual predators, were nonetheless treated as though they were the perpetrators — not the victims — in their cases.

These women were jailed, handcuffed and shackled. One was eight months pregnant. Another was transported in the same vehicle as her attacker and imprisoned in such a way that she could see the man who had attacked her at knife-point.

However, what many are not aware of is that, in each case noted, the victim was an Indigenous woman. One would surmise that the proposed legislative solution — mandatory sexual assault training for judges — would have significant Indigenous content. Appallingly, there is no evidence that the prospective training has any at all.

There is nothing that can help judges and potential judges understand the historic policies that have generated the institutional targeting of Indigenous women as victims of violence and misogynist judicial bias within Canada.

The fastest-growing prison population in this country is Indigenous women who are more familiar with the prison system than the education system, which could have helped them break away from the overwhelming “schools-to-prison” pipeline.

There is no evidence that the proposed training that is being developed as an online video by the National Judicial Institute offers any teachings about the root causes of the shameful status quo regarding Indigenous women and girls who are victimized through sexual assault and other forms of violence.

Judges and aspiring judges can learn about the European-based gender roles that their ancestors foisted onto Indigenous societies, which still reify male superiority and authority over women and children. They can learn about the colonial activities which nullified matrilocality, an Indigenous familial tradition that curbed the potential of men to dominate over households.

They can learn about the Indigenous tradition of both women and men exercising a great deal of personal autonomy, and that gender complementarity in Indigenous societies had been upheld, honoured and esteemed.

All judges should be made aware that they are not exempt from the The Reconciliation Commission’s calls to action, which, of the 94 recommendations, 19 per cent pertain to justice. In the name of reconciliation, they can start assuming a collective responsibility that corrects past injustices by helping restore old traditions that had always kept Indigenous societies healthy and intact.

They can help recover the remnants of old Indigenous family structures, instead of increasingly eroding them through inappropriate, inadequate rulings. Finally, judges and potential judges can be taught how to use their elite positions to counter creatively the current trends which are so devastating, not only to the individuals involved, but to all Canadian families, communities and societies.

Anita Olsen Harper is a member of the Lac Seul First Nation in Ontario and a trustee for the Ottawa-Carleton District School Board.

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